HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jennifer Pinheiro

Applicant

-and-

Maritz Canada Inc.

Respondent

DECISION

Adjudicator: Naomi Overend

Date: March 15, 2012

Citation: 2012 HRTO 540

Indexed as: Pinheiro v. Maritz Canada

APPEARANCES

Jennifer Pinheiro, Applicant ) Self-represented

Maritz Canada Inc., Respondent ) Craig Lawrence, Counsel

1This Decision deals with the respondent’s request for early dismissal of the Application under s. 45.1 on the basis that a decision of an Employment Standards Officer (“ESO”) made under the Employment Standards Act, 2000, S.O. 2000, c. 41 (“ESA”) has appropriately dealt with the substance of the Application.

2An in-person hearing was held on March 5, 2012 at which time the parties made oral submissions on this issue.

BACKGROUND

3The applicant filed her Application on February 28, 2011 alleging discrimination in employment on the basis of sex contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Specifically, the applicant alleges that just prior to her return from maternity and parental leave, the respondent proposed to change the duties of her job, and suggested that she had taken a risk when she took a maternity leave.

4The applicant further alleges that when she spoke to the Vice President, Human Resources about this, he spoke to her in an intimidating fashion. It is common ground that after she complained to the Vice President, he offered the applicant her position with the duties she had performed prior to her leave. The applicant, however, felt that she had been constructively dismissed and resigned her position at the end of August, 2010, prior to her scheduled return to work.

5On October 19, 2010, the applicant filed a claim with the Ministry of Labour alleging a contravention of the maternity and parental leave provisions of the ESA based on the same facts as are found in her subsequently filed Application to this Tribunal. On February 9, 2011, the applicant attended a meeting with the ESO in order to resolve her employment standards claim.

6The applicant states that she was not satisfied with this meeting. She asserts that the respondent did not come to the meeting, and she did not, in any event, agree with the outcome of the meeting, which was a written decision of the ESO denying her claim. The ESO found that “the employer’s corrective action was taken quickly prior to the scheduled return date” and there was, accordingly, no violation of s. 53 of the ESA.

7The ESA decision was released on March 18, 2011. It notes that the claimant (the applicant in these proceedings) had 30 days from the receipt of the decision to appeal to the Ontario Labour Relations Board. The applicant advised that she did not appeal the decision, as she retained little faith in the ESA process, but wished instead to proceed before this Tribunal.

8By the time the Application was served on the respondent, it had a copy of the decision on the ESA claim. In its Response, the respondent asked that the Application be dismissed on the basis that another proceeding had appropriately dealt with the substance of the Application.

ANALYSIS AND DECISION

9Section 45.1 of the Code provides:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

10The applicant did not dispute that the adjudication of her ESA claim was a “proceeding” within the meaning of s. 45.1 of the Code. In any event, this Tribunal has ruled that matters adjudicated under the ESA are proceedings for the purpose of the Code: see Poirier v. McLean Engineering & Marketing, 2010 HRTO 1672 and Henderson v. Nutech Fire Protection, 2010 HRTO 2153. Given that the applicant has not appealed it, the decision of the ESO is a final decision.

11The applicant does not, moreover, dispute that the ESO dealt with the substance of the Application in his decision. As pointed out by respondent’s counsel, the legal issue before the ESO was the same issue as it would be in a proceeding under the Code. The relevant portions of s.53 of the ESA states:

(1) Upon the conclusion of an employee’s leave under this Part, the employer shall reinstate the employee to the position the employee most recently held with the employer, if it still exists, or to a comparable position, it if does not.

…

(2) Section (1) does not apply if the employment of the employee is ended solely for reasons unrelated to the leave.

12The applicant asserts in her revised Application that the ESO’s decision “was an unfair ruling, previous employer did not want to discuss the matter and felt pressured by the Board to not appeal.” The applicant reiterated this argument at the hearing.

13The question of whether an applicant can ask another Tribunal to adjudicate her dispute because she is unhappy with the resolution of the dispute by the first Tribunal is the central issue of a recent Supreme Court of Canada decision, British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52 (“Figliola”). There, the Court held at para. 38 that s. 27(1)(f) of the British Columbia Human Rights Code ,R.S.B.C. 1996, c. 210, is oriented:

…towards creating territorial respect among neighbouring tribunals, including respect for their right to have their own vertical lines of review protected from lateral adjudicative poaching. When an adjudicative body decides an issue within its jurisdiction, it and the parties who participated in the process are entitled to assume that, subject to appellate or judicial review, its decision will not only be final, it will be treated as such by other adjudicative bodies.

14Although the provision being interpreted in Figliola was found in other human rights legislation, this Tribunal has held that the interpretation applies equally to s. 45.1 of the Code: See Gomez v. Sobeys Milton Retail Support Centre, 2011 HRTO 2297 at para. 3 and U.N. v. Tarion Warranty Corporation, 2012 HRTO 211at para. 49.

15The applicant argues that she was discouraged by the ESO from appealing the ESO’s decision and, in any event, had no faith in the process. The applicant does not state she was unaware of the appeal process, but simply that she was discouraged from using it. I note, parenthetically, that she said she was discouraged from bringing her matter to this Tribunal – she states the ESO told her that her application would be out of time – but this did not stop her from pursuing an application under the Code.

16The applicant’s subjective belief that the Ontario Labour Relations Board would not handle her appeal fairly is not a sufficient basis for finding that the proceeding under the ESA did not “appropriately” deal with the subject matter of her Application. That is, the principle set in Figliola, that claimants are not able to switch between adjudicative bodies simply because they are dissatisfied with the result in the first forum, must apply even if the applicant has a subjective belief that the first process was unfair to her.

ORDER

17In summary, the criteria under s. 45.1 have been met. In the interest of judicial economy and finality, the Tribunal is exercising its discretion to dismiss this Application under s. 45.1.